Immigration Article of the Day: Immigrants’ Access to Federal District Court: The Narrowing of § 1252(b)(9) Post-Jennings by Adam Garnick

Abstract

Congress has long sought to limit immigrants’ access to federal district court. This intent was most evident in the passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRAIRA), which required that any judicial review of a final order of removal be channeled into courts of appeals through a petition for review (PFR). But IIRAIRA channeled more than just review of final orders. With the addition of 8 U.S.C. § 1252(b)(9), all claims “arising from” the immigration process were required to be consolidated into a PFR in a court of appeals. Seemingly a wide range of claims — including many urgent challenges to potentially unconstitutional government action — were swallowed by § 1252(b)(9) and thus precluded from immediate review in federal district court. However, when the Supreme Court first construed the provision, it did so narrowly. Indeed, in circuits that adopted the Court’s reading, immigrants were often able to evade the strictures of § 1252(b)(9) and bring claims directly to federal district court. But not all lower courts adhered to the Court’s reading of the provision. The First Circuit — and eventually the Ninth Circuit — adopted a far broader view of § 1252(b)(9), describing it as “breathtaking in scope” and finding it to channel an extensive set of claims. Against this backdrop, the Court, nearly two decades after its first in-depth discussion of the provision, revisited § 1252(b)(9). Though the result was a fractured opinion that failed to provide a comprehensive interpretation of the provision, the decision offered several important clues on the proper scope of § 1252(b)(9). First, it undercut the expansive interpretation of the provision offered by the First and Ninth Circuits. Second, and relatedly, it altered several of the considerations lowers courts use when analyzing § 1252(b)(9) claims, which has led to a substantive narrowing of the provision’s scope.

KJ